JOSE ALFREDO JIMENEZ-AGUILAR v. WILLIAM P. BARR, Attоrney General of the United States
No. 19-1917
United States Court of Appeals For the Seventh Circuit
October 6, 2020
ARGUED JULY 31, 2020 — DECIDED OCTOBER 6, 2020
Before EASTERBROOK and ROVNER, Circuit Judges.
Petition for Review of an Order of the Board of Immigration Appeals. No. A206-156-831
Placed in removal proceedings, Jimenez-Aguilаr sought cancellation of removal on the ground that his return to Honduras would cause “exceptional and extremely unusual hardship” to his spouse and children, all of whom are citizens of the United States. See
On administrative appeal, the Board of Immigration Appeals rejected Jimenez-Aguilar‘s contention that his counsel rendered ineffective assistance by discouraging him from making a claim for asylum. The Board also rejected his argument that the IJ should
That is not, however, what the regulation says. It does not ask whether an alien had a “reasonable opportunity” to seek asylum in the absence of advice from the IJ. It requires the IJ to give specified advice in defined circumstances—and advice from the IJ might have alerted Jimenez-Aguilar that he was entitled to seek more than one kind of relief.
But that conclusion is not enough to entitle Jimenez-Aguilar to a new hearing. Thе question remains whether a potential for gang violence is “harm” as the regulation uses that word. Colloquial usage cannot be enough. If it were, an IJ would need to alert an alien to the possibility of asylum if the alien feared falling off a bike or being in а hurricane‘s path. The regulation speaks of “persecution or harm” (emphasis added), which implies that the harm need not itself qualify the alien for asylum. But for the requirement to make sense in a removal proceeding, the feared harm must relatе to the statutes and rules that
What sort of relation suffices? The parties’ briefs did not address that question. This led us to call for a new round of briefs to discuss the meaning of “harm.” We anticipated that the Board‘s brief would tell us how that word had been interpreted in administrative decisions and request deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). That did not happen. Instead the Board‘s brief catalogs how the courts of appeals have understood the regulation. As far as the Boаrd‘s brief shows, the Board has never considered the meaning of the word “harm.” At oral argument, the agency‘s lawyer confirmed that he had not been able to find a single decision expressing the Board‘s understanding of that word. Our own search was equally fruitless.
This regulation comes up often in removal proceedings. Its meaning has been litigated in many courts of appeals. Yet the Board has remained silent. That is hardly satisfactory. The Board must have a view about what this regulation means; how else can it and the cadre of immigration judges responsibly handle the thousands of proceedings in which aliens may be eligible for asylum or withholding of removal? Still, given the Board‘s silence, we must interpret the regulation‘s language as best we can.
The problem in this regulation is the contrast between the undefined term “harm” and the word “persecution,” which has been extensively discussed by Board and courts alike. Persecution means a risk greater than “mere harassment,” including “‘the use of significant physical force against a person‘s body,’ ‘the infliсtion of comparable physical harm without direct application of force,’ [or] ‘nonphysical harm of equal gravity.‘” N.Y.C.C. v. Barr, 930 F.3d 884, 888 (7th Cir. 2019) (emphasis in original; citations omitted). To show persecution the alien must demonstrate that the injury would occur “on aсcount of race, religion, nationality, membership in a particular social group, or political opinion.”
Jimenez-Aguilar insists that “harm” means any “physical or mental damage.” Yet, as we have already mentioned, that understanding would include injuries from volcanoes, playing soccer, reckless driving, and many other things unrelated to immigration law. “The definition of words in isolation … is not necessarily controlling in statutory construction“; instead, “[a] word is known by the company it keeps.” Dolan v. Postal Service, 546 U.S. 481, 486 (2006) (citation omitted). “Harm” for the purpоses of the regulation must mean the sort of physical or mental distress that (with additional details prompted by the IJ‘s warning) could render one eligible for asylum or withholding of removal.
The context of the regulation shows that it refers to “harm” as it bears on these forms of relief. After all, the regulation‘s operative language—“[a]dvise … that he or she may apply for asylum … or withholding of removal“,
Jimenez-Aguilar contends that “harm” must be read broadly to prevent the term from being subsumed into “persecution.” But we need not read “harm” that way to avoid surрlusage. This is because
At least two circuits have concluded that an immigration judge need not always provide notice of a right to apply for asylum or other removal protections whenever “harm” in some broad sense is possible. In Valencia the Ninth Circuit held that the record must suggest a “plausible basis” for asylum in order to trigger the IJ‘s duty. Likewise, the Fifth Circuit determined that those facing removal are not entitled in all cases to notice оf their right to apply for asylum, in part because this might produce frivolous claims, which would burden both the government and those with legitimate claims. Ramirez-Osorio v. INS, 745 F.2d 937, 946 (5th Cir. 1984) (“[F]rivolous claims not only add administrative burdens but also imperil the identification of non-frivolous claims.“). Valencia echoed this concern, adding that IJs should not prompt aliens to submit applications that were bound to be “deemed so meritless as to be ‘frivolous‘” because such an application may render them “permanently ineligible for benefits under the Immigration and Nationality Act.” 548 F.3d at 1264.
A broadly defined duty to inform also would require immigration judges to present potentially contradictory information to aliens appearing before them—many of whom lack the aid of counsel. Jimenez-Aguilar‘s definition of “harm” would require an IJ to alert an alien to an ability to apply for asylum despite a lack of a plausible basis for relief, and having done so the IJ would also be required by
Though we define “harm” in the context of threats that could qualify an alien for asylum or withholding of removal, we reject the government‘s contention that an alien‘s eligibility must be “apparent” in order to trigger the IJ‘s duty to notify. The government correctly points out that a different subsection of the regulation ties the immigration judge‘s duty to inform an alien about potential benefits to his “apparent eligibility” for those benefits.
In sum, Jimenez-Aguilar needed only to express fear of persecution or harm of the type that could render him eligible for asylum or withholding of removal. But he did not need to express his fear in a way that would make his eligibility for such relief “apparent.”
Jimenez-Aguilar does not contend that he faces danger on account of his race, religion, nationality, or political opinion. Rather, he told the immigration judge that he fears gang violence because his mother received death threats from gangs as a result of her position on a community council that created a neighborhood watch group. His mother testified by affidavit that gangs have threatened and killed members of her community council and their relatives. She expressed fear that her son “is in danger” and that the gang members could “kill him.”
We have held that an alien‘s “nuclear family” qualifies as a “particular social group” for the purpоses of asylum. W.G.A. v. Sessions, 900 F.3d 957, 965 (7th Cir. 2018). The Attorney General recently issued an opinion stating that membership in a nuclear family group does not necessarily qualify an applicant as a member of a “particular social group.” Matter of L-E-A-, 27 I. & N. Dec. 581, 594 (A.G. 2019). Neither party has asked us to reconsider W.G.A. in light of L-E-A-, so we apply W.G.A. here. If Jimenez-Aguilar had expressed only a fear of generalized violence in Honduras, as the Board believed, the IJ would not have needed to notify him about the possibility of asylum. But Jimenez-Aguilar told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, who had received asylum based on these threats. The IJ accordingly should have given the regulatory advice, which could have led to further evidence on topics such as whether the government is complicit in private violеnce.
Jimenez-Aguilar asserts that he was unaware that he might be eligible for asylum or withholding of removal and seeks remand so he may apply for both forms of relief. This is enough to show that the immigration judge‘s error prejudiced him.
The petition for review is granted аnd the proceeding is remanded for a new removal hearing. Other issues that might arise at such a hearing—such as whether Jimenez-Aguilar is disqualified from relief by his long delay in applying, see